At the
summary judgment stage of this action, this court concluded
that William Wride, Paul Gehl and the Dallas law firm of
Munsch Hardt had agreed, during a meeting at the Kansas City
airport, to split $12 million in settlement proceeds three
ways. Following a bench trial, I further concluded that
William Wride had agreed to pay $365, 000 to Todd Thiel, who
was not present at that Kansas City meeting and who had not
agreed to terms with the other parties. What remains in this
action is Wride's claim that Paul Gehl, the intervening
plaintiff in this action, has breached his agreement to
obtain Thiel's assent to the Kansas City agreement.
According to Wride, had Gehl lived up to his promise, this
action never would have ensued. As a result, Wride lost the
$365, 000 he must pay Thiel, as well as other expenses and
attorney's fees. For the reasons given below, Wride's
motion for summary judgment will be denied.

The
background facts have been set forth previously. (ECF Nos.
125, 154.) The operative facts in this case are quite
limited. At the Kansas City meeting, which occurred in June
2010, the parties wrote up and signed a handwritten agreement
with the following points:

1. Division of 12mm 4 to Gehl 4 to Munch Hardt Harr 4 to
Wride

2. Wride to settle with and pay [various creditors] and all
closing costs . . .

3. Mutual full complete release including McKinley and Thiel

4. Gehl to Deliver Agreement of Thiel and McKinley Reserve

(ECF No. 85-4.)

Following
this agreement, the parties circulated a more formal
settlement agreement. In August, Wride and Gehl met with
Thiel to try to obtain his signature. Thiel, however, was
upset at being shut out of the agreement and believed he was
entitled to a share of the proceeds, in particular, some
$365, 000 he had loaned to the business venture. Regardless
of Thiel's lack of consent, however, the parties went
ahead as though the agreement were binding on all of them,
with Wride making payments to others out of the settlement
funds. Thiel later brought this lawsuit against Wride,
alleging that the two of them had reached a side agreement
whereby Wride would pay Thiel the $365, 000 as a full
settlement of their dispute. As noted earlier, after a bench
trial I concluded that Wride had breached that agreement.

Wride
now alleges that Gehl breached his duty to "deliver
agreement of Thiel, " as the Kansas City agreement had
provided (Id.) Had Gehl obtained Thiel's assent
to the parties' agreement, Thiel never would have had the
side dispute with Wride that gave rise to this lawsuit. In
short, now that Thiel has won his $365, 000 claim against
Wride, Wride believes it is Gehl's obligation to cover
that liability because Gehl failed to "deliver"
Thiel's assent.

Wride's
argument is as problematic as it is novel. The first problem
is that an agreement to obtain another person's
agreement cannot be enforceable. Agreement, by its very
nature, is a voluntary act. In some sense Gehl could
"agree" to obtain Thiel's agreement, but at
best that means Gehl would try to do so. Since
Thiel's agreement would always have to be voluntary-his
own choice- no one else could ever promise to
"deliver" his agreement. It would always be up to
Thiel. In fact, this is how the parties behaved. After the
Kansas City meeting at which he was not present, Thiel met
with Gehl and Wride in an effort to come to an agreement. If
Gehl had somehow already made a binding promise to obtain
Thiel's agreement, such meetings would have been
unnecessary. In sum, to the extent Gehl agreed to deliver
Thiel's agreement, such a promise could only
have meant that he would assist Wride in attempting to secure
Thiel's assent. There is no evidence he did not do that.
Since both parties would have known that Thiel's
agreement would always be up to Thiel himself, Gehl
cannot be liable for the way things turned out.

Even if
such an agreement were enforceable in the abstract, Wride
ignores the fact that it was his own breach of contract that
gave rise to the damages for which he is liable in this
action. This court concluded, after a bench trial, that Wride
had orally agreed to pay Thiel the $365, 000 Thiel had been
demanding. Wride reached (and breached) this agreement with
Thiel after Gehl supposedly promised (and failed) to
obtain Thiel's agreement to the Kansas City arrangement.
Under Wride's logic, he could have promised any sum of
money to Thiel and somehow Gehl would be on the hook for it
simply because Gehl had promised to obtain Thiel's
agreement to a different deal. It should be clear that the
damages Wride is obligated to pay flow from his own conduct
in entering into an agreement with Thiel and then breaching
it, decisions he made following the Kansas City
agreement. Nothing obligated Wride to enter into an agreement
to pay $365, 000 to Thiel, or any agreement at all. (Of
course, he denied entering into any agreement.) The fact that
he did so means that he voluntarily agreed to pay Thiel, a
decision that cannot somehow be placed at the doorstep of
Gehl. In short, Wride's own actions gave rise to all of
the damages he now seeks.

Wride
also claims that Gehl somehow breached the third sentence of
the Kansas City agreement, which simply states "mutual
full complete release including McKinley and Thiel."
(ECF No. 85-4.) In Wride's view, this breach occurred
when Thiel filed this lawsuit against Wride. But it should be
obvious that Thiel had never agreed to release Wride from
anything, since Thiel was not a signatory to the release.
This left Thiel free to sue Wride based on their agreement.
It is unclear how or why Paul Gehl, who did sign
agree to a release, could have breached that agreement by
virtue of a non-party to that agreement's decision to
bring a lawsuit. Instead, any promise Gehl made to obtain
Thiel's consent to a release is just as illusory as his
promise to get Thiel to agree with the rest of the contract.

For
these reasons, Wride's motion for summary judgment is
DENIED. Summary judgment is GRANTED in favor of Gehl, and
Wride's claim against Gehl is DISMISSED. Plaintiff Todd
Thiel is directed to submit a proposed judgment within the
next ten ...

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